The Morgentaler decision is 25 years old

CALGARY, AB, Jan. 29, 2013/ Troy Media/ – Yesterday marked 25 years since the Supreme Court of Canada struck down this country’s abortion law. Called the Morgentaler decision, in reference to abortion provider, advocate and defendant Dr. Henry Morgentaler, it paved the way for abortion to become a women’s health issue.

Last week, in a statement of support from the United Nations, Special Rapporteur Anand Grover congratulated Canada for recognizing women’s sexual and reproductive autonomy with the decriminalization of abortion. He wrote of R. v. Morgentaler: ‘It recognized the fundamental right of a woman to make decisions concerning her own body, ushering in an era of equality, dignity and freedom for women in Canada.’

On the 20th anniversary of this judgment, I wrote that ‘when compared to other countries with laws governing abortion, Canada is an intriguing example of how unnecessary such laws actually may be.’

In 2008, decriminalization was considered scandalous by some. In the National Post, David Frum called the Canadian status on abortion ‘the Western world’s most radical abortion regime.’ I countered that ‘in this case, radical is best defined as going to the root or foundation of something. Radical as in fundamental. The fundamental truth of having no abortion laws (and universal health care) is that positive outcomes have ensued.’

Certainly, nothing has transpired since 1988 to suggest Canada should change the status quo.

Celia Posyniak, Executive Director of the Kensington Clinic in Calgary, says the rate of abortion in Canada has remained stable or dropped slightly, and most women who have abortions do so before 12 weeks. ‘Women do not have later abortions unless it is for reasons of lethal fetal anomaly or if the life or health of the mother is threatened.’ Posyniak says a rate of 0.3 per cent for abortions over 24 weeks ‘reflects the rarity of these procedures.’

As hard as they’ve tried, anti-abortion advocates, commentators and Conservative backbenchers have failed to turn abortion back into a political issue. Twenty-five years after the Morgentaler decision, the regulation of abortion services in Canada remains where it rightly belongs, governed by the Canada Health Act. Prime Minister Stephen Harper has so far been true to his word not to reopen the abortion debate in parliament. Could this be Harper’s acknowledgement that abortion is fundamentally a women’s health issue?

Regardless, from a women’s health perspective Canada still has some work to do. Accessibility to abortion services varies considerably across the country. Many women, especially those in rural and remote areas, must take time off work to travel long distances to access this time-sensitive medical service. P.E.I. has no service, while New Brunswick violates the Canada Health Act by requiring referrals from two doctors for a hospital procedure and by not covering costs at the free-standing clinic.

Also, abortion is on the list of excluded medical services in the reciprocal billing agreement. If you recently moved across the country, you must pay out-of-pocket and seek reimbursement from your home province.

These barriers to access affect younger and poor women most significantly.

Five years ago, I quoted research by the Guttmacher Institute and the World Health Organization that revealed ‘abortion rates in countries worldwide are similar regardless of whether the procedure is legal or not.’

I stated that ‘whether legal or not, safe or not, abortion is a choice often made by normal women all around the world. We cannot deny this. We could do worse as a society than to normalize abortion as a fact of human experience. Not normal as in blase, but normal as in standard, natural, common.’

Canada, to its credit, has been normalizing abortion within the realm of women’s health for the past 25 years.

As Joyce Arthur and Jane Cawthorne write at

Canada is the first country in the world to prove that abortion care can be ethically and effectively managed as part of standard healthcare practice, without being controlled by any civil or criminal law.

I concluded my 2008 commentary this way:

‘All things considered, it appears the decision made 20 years ago today by the Supreme Court of Canada was wise, just and worthy of Canadians.’

Five years later, I stand by this conclusion.

Laura Wershler is a veteran sexual and reproductive health advocate and women’s health critic. She blogs regularly for re:Cycling, the blog of the Society for Menstrual Cycle Research. Follow her on Twitter @laurawershler


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